Tenn. bill bans gang members from public spaces

Bill provides statutory guidance for courts using Tennessee's public nuisance law to keep criminal gang members out of public areas

By Andy Sher
Chattanooga Times Free Press

NASHVILLE — Senators are slated to act this week on a bill that provides statutory guidance for courts using Tennessee's public nuisance law to keep criminal gang members out of public areas like parks and neighborhoods.

The Community Safety Act builds on a 2009 change in the public nuisance law that brought criminal gangs and their members under its provisions.

Acting on requests by Nashville and Memphis officials, judges last year issued injunctions barring Kurdish Pride Gang members from gathering in a Nashville park and prevented the Riverside Rollin' 90s Neighborhood Crips from congregating in a South Memphis neighborhood.

State Safety Commissioner Bill Gibbons said the goal of the Haslam administration bill is to encourage wider use of nuisance laws against criminal gangs by codifying the approach.

The bill is scheduled for a Senate floor vote Tuesday. The House companion bill is in the Calendar and Rules Committee, the last hurdle before the bill can come to the chamber floor.

"What we have found in both Nashville and Memphis is it can be a very effective tool," Gibbons said last week after an amended version of the bill cleared the Senate Judiciary Committee.

He said the bill expands on what Nashville and Memphis have done by "putting it in our state code so that other judges around the state will be able to use that as a road map in addressing criminal gang activity."

Administration officials agreed to changes in the bill to accommodate concerns raised by the Legislature's Black Caucus, the American Civil Liberties Union of Tennessee and several conservative Republican lawmakers.

Some critics, including Rep. JoAnne Favors, D-Chattanooga, still have reservations.

"I do have some concerns along with several other people," Favors said, citing a provision that bars two or more enrolled gang members from being together in a designated "safety zone."

The court order doesn't affect the right to associate in private spaces, according to a Safety Department summary.

Favors said she and fellow Black Caucus members, as well as the NAACP and other social and civic groups, also "want to make sure there's no racial profiling." She hopes those issues can still be resolved but doesn't anticipate voting for the measure.

Will It Work In Chattanooga?
Senate Speaker Pro Tempore Bo Watson, R-Hixson, is carrying the bill in that chamber.

"It gives law enforcement a really good tool to use to restrict members of gangs," Watson said. "And my understanding is that where it's done and done correctly that it's very successful."

Watson said he thinks Chattanooga Mayor Andy Berke will find it useful in his efforts to combat gangs.

"It ties in with his High Point initiative," Watson said of Berke's anti-violence initiative. "I think it works very well with that."

Berke's Violence Reduction Initiative works to combat gang-related shootings and killings by focusing on members who drive most of the violence. That's maybe 150 to 200 people, the mayor said.

"We're focused in on those individuals," Berke said. "If the state passes this law we will use all options at our disposal."

But he said he doesn't know of a park that's been "taken over by a gang," as was the case in Nashville when Metro Police pushed to have the Kurdish Pride Gang declared a nuisance.

"We don't have bad neighborhoods. ... We have some individuals who are members of groups driving a lot of violence in our city," Berke said.

Little Guidance In 2009 Change
The 2009 change provided no guidance to judges. The modified bill was largely modeled on research by Nashville and Memphis judges. The judges used common law and California's nuisance laws when issuing injunctions, said Rep. Mike Carter, R-Ooltewah.

But Carter, a former Hamilton County General Sessions Court judge, and several other conservative Republicans had concerns the original administration bill was overly broad.

That was confirmed in a legal opinion by Tennessee Attorney General Robert Cooper in response to questions posed by Senate Judiciary Committee Chairman Brian Kelsey, R-Germantown.

In his March 21 opinion, Cooper pointed out several provisions in the original bill that might be subject to legal challenge.

One involved the standard of proof fashioned by Memphis and Nashville judges to declare a criminal gang a nuisance and enjoin gang members from gathering in groups of two or more in public areas like parks.

Tennessee judges settled on a "preponderance of the evidence" standard. That's now been changed to a tougher "clear and convincing evidence" standard.

There was another concern regarding how more gang members can be added to those already approved by a judge in the original injunction.

"There was no real mechanism," said ACLU-Tennessee Legal Director Tom Castelli. "There needs to be due process" so a court, not police, can determine if a person is a gang member subject to the injunction.

There's also a way for gang members named in the injunction to declare they have left the gang and no longer come under its provisions.

"We're glad those two things have gotten in there," Castelli said. But ACLU-Tennessee still doesn't like the bill. Castelli said the group is "just generally concerned with any massive legislation like this that's going to affect so many constitutional rights."

Like Favors, Castelli has concerns about racial profiling.

Under nuisance statutes, gang members who violate an injunction could be fined$50 and ordered to serve up to 30 days in jail.

But many gang members already are on probation, so a violation could put them back before probation officers, proponents say.

When the bill came up in the House Civil Justice Committee last month, Carter said there was "lengthy debate" with Gibbons and administration officials to resolve issues.

He said the bill is in "excellent shape" now and "will literally allow cities to reclaim neighborhoods from gangs."

The bill "doesn't do profiling," he said, because those enjoined will have gone through a court process. "Without the bill, profiling would still exist."

The administration is citing statistics from Memphis as proof the injunction approach works.

According to the Safety Department's figures, robberies in the Riverside neighborhood fell 70 percent — from 13 to 4 — five months after the injunction was issued. Weapons law violations dropped 37.5 percent, going from 8 to 5.

Felony drug violations dropped from 24 to 13 — a 45 percent decrease.

Carter said he was a sitting judge, sentencing a gang member, when he first was struck by the reality of gang violence in parts of Chattanooga.

"There was an African-American lady with the sweetest disposition, a grandmother, at the trial," Carter said. He recalled the woman later telling him, "You're the man in the robe. What are going to do to help me?"

Carter said the woman told him, "I can't sleep in my bed. I have to sleep on my floor for fear they're going to shoot holes in my walls. I'm a prisoner in my own home. You're a judge. Do something to help me."